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But this can hardly be taken as an emphatic determination that such is a constitutional requirement in the absence of an express provision to that effect. It is rather a consideration of what provisions the legislature ought to make for the protection of the land owner, so that he should not be left to the mercy of a possibly dishonest or bankrupt corporation, and run the risk of losing both his land and his money. And most of the State statutes do make such provisions.
SECTION 122. Regulation of the use of lands – What is a puisance?
122a. What is a nuisance, a judicial question.
§ 122. Regulation of the use of lands
What is a
provision for compensation, the land owner may resort to his common-law remedy. Hooker v. Haven, etc., Co., 16 Conn. 146 (36 Am. Dec. 477). It is not unconstitutional, after providing a proper remedy for the recovery of the compensation, to limit the time in which the remedy may be pursued. Charleston Branch R. R. Co. v. Middlesex, 7 Met. 78; Rexford 0. Koight, 11 N. Y.308; Callison v. Hedrick, 15 Gratt. 244; Cuppv. Commissioners of Seneca, 19 Ohio St. 173; People v. Green, 3 Mich. 496; Taylor o. Marcy, 25 Ill. 518; Gilmer v. Lime Point, 18 Cal. 229. But where the property is taken by a private corporation, instead of by the State, an inclination is manifested by some of the authorities to hold it necessary on general principles that payment of compensation precede or accompany the condemnation. "The settled and fundamental doctrine is, that government has no right to take private property for public purposes, without giving just compensation; and it seems to be necessarily implied that the indemnity should, in cases which will admit of it, be previously and equitably ascertained, and be ready for reception, concurrently in point of time with the actual exercise of the right of eminent domain." Kent, Chancellor, in 2 Kent, 329, note. See, also, to the same effect, Loweree v. Newark, 38 N. J. 151 ; State v. Graves, 19 Md. 351; Dronberger v. Reed, 11 Ind. 420; Shepherdson v. Milwaukee, etc., R. R. Co, 6 Wis. 605; Powers v. Bears, 12 Wis. 213. * See Ash v. Cummings, 50. N. H. 591; Memphis & Charleston R. R. Co. v. Payne, 37 Miss. 700; Walther u. Warner, 25 Mo. 277; Carr o. Georgia R. R. Co., 1 Ga. 624; Southwestern R. R. Co., d. Telegraph Co., 46 Ga. 43; Henry v. Dubuque, etc., R. R. Co., 10 Iowa, 540; Curran v. Shattuck, 24 Cal. 427. i § 18.
nuisance? — The reasonable enjoyment of one's real estate is certainly a vested right, which cannot be interfered with or limited arbitrarily. The constitutional guaranty of protection for all private property extends equally to the enjoyment and the possession of lands. An arbitrary interference by the government, or by its authority, with the reasonable enjoyment of private lands is a taking of private
a property without due process of law, which is inhibited by the constitutions. But it is not every use which comes within this constitutional protection. One has a vested right to only a reasonable use of one's lands. It is not difficult to find the rule which determines the limitations upon the lawful ways or manner of using lands. It is the rule, which furnishes the solution of every problem in the law of police power, and which is comprehended in the legal maxim, sic utere tuo, ut alienum non lodas. One can lawfully make use of his property only in such a manner as that he will not injure another. Any use of one's lands to the hurt or annoyance of another is a nuisance, and may be prohibited. At common law that is a nuisance, which causes personal discomfort or injury to health to an unusual degree. As it has been expressed in a preceding section, the right of personal security against acts, which will cause injury to health or great bodily discomfort, cannot be made absolute in organized society. It must yield to the reasonable demands of trade, commerce and other great interests of society. While the State cannot arbitrarily violate the right of personal security to health by the unlimited authorization of acts which do harm to health, or render one's residence less comfortable, there is involved in this matter the consideration of what constitutes a reasonable use of one's property. At common law this is strictly a judicial question of fact, the answer to which varies according to the circumstances of each case. One is expected to endure a reasonable amount of discomfort and annoyance for the public good, which is furthered by the permission of trades and manufactures, the prosecution of which necessarily involves a certain amount of annoyance or injury to the inhabitants of the neighborhood. In all such cases, it is a question of equity, on whom is it reasonable to impose the burden of the inevitable loss, resulting from this clashing of interests; and independently of statute it is strictly a judicial question, and all the circumstances of the case must be taken into consideration. But thc legislature frequently interferes to modify the common law of nuisances; sometimes legalizing what were nuisances before the enactment, and sometimes prohibiting, as being nuisances, what were not considered to be such at common law. No legislative act can justify a nuisance, which is willfully committed and which serves no useful purpose. But when the objectionable act serves a useful purpose, and supplies a public want, the private right of personal security against nuisances must yield to the public necessity, whenever a legislative act calls for the sacrifice. It is a constitutional exercise of police power to legalize a nuisance, if the public exigencies should require it. It is of course a matter of legislative discretion, whether the legalization of the nuisance is required by the public necessities. Thus it has been held to be lawful for the legislature to authorize the ringing of bells and the blowing of whistles by the locomotives of railroads at the times when, and in the places where, it would otherwise be a nuisance. The public safety required the imposition of this burden upon the comfort and quiet of those who may thereby be disturbed. In the
i See ante, $ 18.
? Sawyer v. Davis, 136 Mass. 239 (49 Am. Rep. 27); Pittsburg, Cin. & St. L. R. R. Co. v. Crown, 57 Ind. 45 (33 Am. Rep. 73).
same manner the legislature may authorize the prosecution of certain trades and occupations in localities, which would, under like circumstances, be considered a nuisance at common law. But in all these cases of legalization of nuisances, the legislative interference must promote some public good. If the benefit, derived from the authorization of the nuisance, is altogether of a private character; if it can in no legitimate sense be considered as a public benefit, the legislative interference is unwarranted, and it is the duty of the courts to declare the statute to be unconstitutional. It is a question for the legislature whether the public needs require the legalization of the nuisance ; but it is a judicial question whether such a legislative act serves a public want.
On the other hand, through the interference of the legislature, the doing of acts may be prohibited on the ground of being nuisances, which otherwise have been held to be permissible, because of the public benefit resulting from these acts. The courts may determine, independently of statute, that the public benefit from a certain unwholsome or annoying trade far outweighs the personal discomfort or injury to health, which attends the prosecution of the trade, and for that reason may refuse to prohibit; but the legislature is not precluded from reaching a different conclusion. Granting that the act or trade produces discomfort or injury to health, it is ultimately a legislative question whether the public welfare requires the imposition of this burden. No one has a natural right to do that which injures another. If the law permits him to do this it is a privilege, which may be revoked at any time by the proper authority. The police power of the government is reposed in the legislature. It is quite a common experience for the legislature, either to prohibit altogether, or to regulate the doing of that which works an annoyance or injury to others.
§ 122a. What is a nuisance, a judicial question.— It is clearly within the legislative discretion to determine whether the private interest or the public good shall yield in a case where the two are antagonistic, and to prohibit or permit the doing of what promotes the public welfare and at the same time causes personal discomfort or injury; and its judgment cannot be subjected to a review by the courts. The courts cannot reverse the legislative decree in such a case ; it is not in any sense a judicial question. But the police power of the legislature, in reference to the prohibition of nuisances, is limited to the prohibition or regulation of those acts which injure or otherwise interfere with the rights of others. The legislature cannot prohibit a use of lands, which works no hurt or annoyance to the neighbors or adjoining property. The injurious effect of the use of the land furnishes the justification for the interference of the legislature. The legislative prohibition or regulation of the use and enjoyment of one's private property in land is in violation of constitutional principles, which is not confined to the prevention of a nuisance. A certain use of lands, harmless in itself, does not become a nuisance, because the legislature has declared it to be so. The legislature can determine whether it will permit or prohibit the doing of a thing which is harmful to others, in the proper consideration of the public welfare ; but it cannot prohibit as a nuisance an act which inflicts no injury upon the health or
1 « Unwholesome trades, slaughter houses, operations offensive to the senses, the deposit of gunpowder, the application of steam power to propel cars, the building with combustible materials, and the burial of the dead, may all be interdicted by law, in the midst of the dense masses of population, on the general and rational principle, that every person ought so to use his property as not to injure his neighbors; and that private interests must be made subservient to the general interests of the community." 2 Kent Com. 340.